Reality Check for the Commerce Clause

MISSOULA, Mont.—“With a homemade .22-caliber rifle he calls the Montana Buckaroo, Gary Marbut dreams of taking down the federal regulatory state.
Montana passed a law that tries to exempt the state from federal gun regulation. But the law is now before the courts, in a test of states’ rights. WSJ’s Jess Bravin reports.

He’s not planning to fire his gun. Instead, he wants to sell it, free from federal laws requiring him to record transactions, pay license fees and open his business to government inspectors.

For years, Mr. Marbut argued that a wide range of federal laws, not just gun regulations, should be invalid because they were based on an erroneous interpretation of Congress’s constitutional power to regulate interstate commerce. In his corner were a handful of conservative lawyers and academics. Now, with the rise of the tea-party movement, the self-employed shooting-range supplier finds himself leading a movement.

Ten state attorneys general, dozens of elected officials and an array of conservative groups are backing the legal challenge he engineered to get his constitutional theory before the Supreme Court. A federal appeals court in San Francisco is now considering his case.“

Gary Marbut has a colossal fight on his hands, but it is one I believe he can win. To me the issue lies not in the word “commerce,” but in the word “regulate.” Wikipedia, in its coverage of the commerce clause, is overly concerned with the definition and application of the word “commerce.” (Let’s put aside for now the common-sense definition of the word commerce as pertaining to economic activity only.) In doing so, they (as with many courts in the past) are focusing on the wrong word. The key word in the clause is “regulate.”

The word regulate, for some time before, during, and after the drafting of the Constitution, simply meant to make regular. In the context of the commerce clause and its application “among the states,” this meant to keep the process of economic exchange between states moving along smoothly and fairly, with no state hindering the receipt or transmittal of goods into or out of its borders. This did not mean that the federal government could regulate how a product was made within a state, nor could it micromanage how it was transmitted to another state(s).

As Tom Woods points out in “Nullification: How to Resist Federal Tyranny in the 21st Century, “ “This is the sense in which the Second Amendment’s ‘well-regulated militia’ is to be understood, for example.” After all, the word “regulate” held the same meaning across the amendments. Imagine if the Second Amendment allowed for the federal government’s micromanaging of the militia. What would be the point of the amendment? What good would a militia be to a free people if the central government controlled it as much as it tries to control interstate economic activity? A militia would be pointless in that case, and may as well be merged with the federal government’s army. Then where would that leave the people should the federal government turn on them?

Yes, Mr. Marbut’s got a fight on his hands, but he does have a lot of guns at his disposal in the form of his own state government, tea party activists, and, of course, the Tenth Amendment Center. We’ve got his back and we wish him success.